A Modest Amendment

Update

The bills I discuss below were withdrawn on the 27th of February, 2017, because they faced almost certain defeat. The issue of reform was referred to the Queensland Law Reform Commission.

Two related private member’s bills are currently before the Queensland Parliament. The Abortion Law Reform (Women’s Right To Choose Bill) 2016 removes abortion from the Queensland Criminal Code, lock stock and barrel. This is necessary, as the Explanatory Note makes clear, because “[t]he current law in Queensland is causing great hardship and personal suffering.” Further, according to Dr Carolyn De Costa, “This is the only health procedure that is dealt with like this in criminal legislation. It’s way, way out of date and belongs in the 19th century. We’re practising medicine in the 21st century.” The “Benefits of the Bill” include the following. “The Bill will repeal outdated laws that can criminalise women and doctors for a basic human right and a medical procedure…These archaic laws are dangerous and have no place in modern society where women should always have control over their own bodies. This Bill will protect vulnerable Queensland women and the doctors that are currently risking prosecution to assist them.”

In his speech introducing the bill, Mr Pyne (Cairns—Independent) made some trenchant comments.
“A Cairns District Court jury took less than an hour to find Tegan Simone Leach, 21, and her partner, Sergie Brennan, not guilty of charges of procuring an abortion…They admitted…that Ms Leach took the pills…because they were not ready to have a child. It is my position that when a young woman is not ready to have a child and chooses to terminate a pregnancy that should be a matter for her and her medical practitioner, not a matter for the state.”

He goes on, “Surely a young person should not have to ruin their young lives by proceeding with a pregnancy if they are not ready and their family and their doctor think it unadvisable.” Well, and perfectly correctly, said Mr Pyne.

However, there was one disturbing element to Mr Pyne’s speech. “Should this bill pass, the decision for the doctor would simply need to be that continuing the pregnancy poses a bigger risk to the woman than terminating it.” One has to ask, “What’s it got to do with the doctor?” Is women’s control over their own bodies now to be handed over to the medical profession?

Apparently Mr Pyne took this into consideration, for shortly before the Abortion Law Reform (Women’s Right To Choose Bill) came back from committee, Mr Pyne introduced the Health (Abortion Law Reform) Amendment Bill 2016 to clarify matters following the presumed removal of abortion from the Criminal Code. Mr Pyne’s speech in introduction showed the development of his thinking.

“Section 20 provides that only a qualified health practitioner may perform an abortion…It also says a woman does not commit an offence against this section for performing an abortion on herself.”

“Section 21 addresses abortion on a woman more than 24 weeks pregnant. It states that a doctor may perform an abortion…only if the doctor reasonably believes the continuation of the woman’s pregnancy would involve greater risk of injury to the physical or mental health of the woman than if the pregnancy were terminated; and has consulted with at least one other doctor [to the same effect.]”

This is an enormous step backwards. Not only does a distressed and vulnerable woman have to plead with one doctor to provide her “basic human right” (in Mr Pyne’s words) to the control of her own body, but she must now plead with two. This may not be as bad as it looks, though, because there does not seem to be any requirement for the second doctor to interview the patient, unless a judge decides that “reasonably believes” unreasonably requires such an interview.

The section does at least make it clear that there is no artificial and arbitrary upper limit on the period in which a woman in physical or mental danger can obtain (doctors willing) an abortion.

What happened to that talk in the earlier bill about removing abortion from the Criminal Code? Well, it does get a guernsey in a note to Section 21. “A failure by a doctor to comply with this section does not constitute an offence but may constitute behaviour for which action may be taken under the Health Practitioner Regulation National Law (Queensland), Part 8 or the Health Ombudsman Act 2013.” That is some relief.

“Section 22 concerns the duty to perform or assist in abortion. It says no-one is under a duty to perform or assist in performing an abortion…However, a doctor has a duty to perform, and a registered nurse has a duty to assist a doctor in the performance of, an abortion on a woman in an emergency if the abortion is necessary to save the life of, or to prevent a serious physical injury to, the woman.” The difference between the conditions applying in this situation and those of section 21 are quite clear. Section 21 only addresses “greater risk” of physical or mental injury by continuing the pregnancy than by terminating. Section 22 addresses an immediate threat. This provision will be worthwhile if it prevents the suicide of one desperate woman who finds herself at the mercy of the “consciences” of medical providers in, for example, a country hospital. It is important to note that this safeguard applies to all abortions, up to term.

The first bill is at least unambiguous and represents a great leap forward for Queensland. The second bill is something of a curate’s egg, but is overall a step in the right direction. There is, however, a glaring omission.

While this long-awaited clarification and rationalisation offers more security to women and the medical practitioners seeking to help them, including the important consideration that abortion is available until term, no-one seems to have considered the situation of women whose foetuses are delivered prematurely. Given that the justification for the great majority of abortions under current circumstances is concern about the mental, rather than the physical, health of the woman, this is a grievous oversight. Suppose a woman who, though in a desperate psychological condition over her pregnancy, holds off having an abortion through a certain reluctance and in the belief that she still has, say, eight weeks to decide. Suppose further that this woman has the misfortune to deliver the foetus at this time. If anything, this circumstance would render the woman’s psychological state more parlous. Yet at the very time of her greatest vulnerability and need, the state and the law turn their backs on her, denying her the undoubted benefits of an abortion in her troubled state, because of an accident of timing.

This anomaly and injustice could be addressed by defining a “nominal pregnancy.” While the details would have to be decided by extensive consultation, suppose that the minimum period of a nominal pregnancy were defined as 37 weeks. The mother of any foetus delivered before 37 weeks gestation could then seek to have her nominal pregnancy terminated on the same basis as a woman whose actual pregnancy was similarly advanced.

This is not a proposal for infanticide. Pregnancy properly lasts about 39 weeks; the foetus is not ready for the outside world until then, as the difficulties of the prematurely born attest. So such a pregnancy coming to term at the usual time reflects the proper transition from foetus to infant. A prematurely delivered foetus is physiologically, then, still a foetus, although one in more difficult circumstances than usual. Furthermore, any psychological and exacerbating financial stresses on the woman will be aggravated by the circumstances of premature delivery.

It goes without saying that the termination of what we might call an externalised foetus would be achieved in the most humane possible manner, involving no suffering to the foetus. This carefully controlled process would in fact be much more humane than the process of normal late-term abortion, with its necessarily confronting aesthetics.

Hopefully the opportunity presented by these bills will seized in full by amending the second bill to include the just principle of a “nominal pregnancy” and put Queensland at the forefront of progressive thinking on women’s issues.